323 Mass. 319 | Mass. | 1948
The plaintiff brought this suit in equity in the Land Court to determine the extent of an easement appurtenant to her land. She also sought to restrain the defendants from interfering with a use, hereinafter described, which she was making of the easement. G. L. (Ter. Ed.) c. 185, § 1 (k), as appearing in St. 1934, c. 67, § 1. The evidence is not reported, but the judge made findings of facts.
in a certain parcel of land and the buildings thereon in that part of Northbridge known as Whitinsville. At the saíne time and by the same deed the remaining undivided
The decree was right.
It was not disputed that the plaintiff had, as appurtenant to her land, an easement of way over the defendant’s land. “When an easement or other property right is created, every right necessary for its enjoyment is' included by implication.” Sullivan v. Donohoe, 287 Mass. 265, 267. Mt. Holyoke Realty Cory. v. Holyoke Realty Cory. 298 Mass. 513, 514. But it cannot be said that the laying of gas pipes beneath the driveway was necessary to the enjoyment of the plaintiff’s right of passage over it. The defendant as owner of the servient estate retained the use of her land for all purposes except such as were inconsistent with the plaintiff’s easement. Merry v. Priest, 276 Mass. 592, 600. Carter v. Sullivan, 281 Mass. 217, 225. The use of the way to which the plaintiff claims to be entitled was not included either expressly or by implication in the grant creating the easement. It has generally been held that a right of way over the land of another, even though, as here, it be granted in general terms, does not include the right to lay pipes or to erect structures in or upon the way. Congregation Beth Israel v. Heller, 231 Mass. 527 (bulkhead). Crullen v. Edison Electric Illuminating Co. of Boston, 254 Mass. 93, 94 (pole for electric light wires). Carpenter v. Capital Electric Co. 178 Ill. 29 (electric light wires). Watson v. French, 112 Maine, 371, 375 (water pipes). United States Pipe Line Co. v. Delaware, Lackawanna & Western Railroad, 33 Vroom, 254, 281 (pipe line for oil). Allen v. Scheib, 257 Pa. 6 (gas pipe).
The contention of the plaintiff that the judge erred in failing to decide that she had a right to maintain the water
It follows that the entry must be
Decree affirmed with costs.
By Atam Atamian’s will, which was allowed on October 15, 1940, he left all of his property to his wife, Marta.